De Los Santos v. New York City Transit Authority

129 A.D.3d 453, 10 N.Y.S.3d 243

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 4, 2015
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Barry Salman, J.), entered October 3, 2014, which granted defendants’ motion to vacate a prior order granting plaintiff’s motion for summary judgment on the issue of liability upon defendants’ default, and, upon vacating the prior order, denied plaintiff’s motion for summary judgment, unanimously affirmed, without costs.

Defendants provided a reasonable excuse for their failure to timely oppose plaintiff’s summary judgment motion. Defendants submitted, inter alia, their attorney’s affirmation explaining that she was trying another case during a three-week period when defendants’ opposition to plaintiff’s motion was due, and that defendant Ciprian, the driver of defendant Transit Authority’s bus which collided with plaintiff’s vehicle, was out on medical leave and unavailable to execute an affidavit in opposition (see Xiao Jia Lin v Engleton, 121 AD3d 483 [1st Dept 2014]).

Ciprian’s affidavit, in which he averred that the collision occurred when plaintiff’s vehicle “came into [Ciprian’s] lane of travel and struck the right passenger’s side of the bus,” even though Ciprian “turned the steering wheel in an effort to avoid contact,” adequately set forth a meritorious defense on the issue of fault in causation of the accident. The affidavit also sufficed to raise questions of fact warranting denial of plaintiff’s pre-discovery motion for partial summary judgment on the issue of liability (see Belziti v Langford, 105 AD3d 649 [1st Dept 2013]).

Concur — Tom, J.P., Sweeny, Moskowitz, DeGrasse and Richter, JJ.